Judgment: Teitiota v MBIE - 'climate refugee' claim

A The
application for an extension of time for the leave
application is granted.

B The
application for leave to appeal to the High Court is
dismissed.

C The applicant is to pay the
respondent’s costs as for a standard application for leave
to appeal under r 14 of the Court of Appeal (Civil) Rules
2005 on a band A basis with usual disbursements.

[…]

Background

[5] Mr
Teitiota is unlawfully in New Zealand. He and his wife came
here from Kiribati in 2007 and remained after their permits
expired, in Mr Teitiota’s case on 7 October 2010. Although
their three children were born in New Zealand none is
entitled to New Zealand citizenship.

[6] After being
apprehended, Mr Teitiota applied for refugee status and/or
protected person status. That was declined in a decision of
a Refugee and Protection Officer. Mr Teitiota then appealed
to the Tribunal. Mr Teitiota applied only for himself. The
Tribunal asked Mr Teitiota’s counsel why the application
had not extended to Mr Teitiota’s wife and the three
children. Mr Kidd’s explanation was that “the health
authorities and the kindergarten” had continued to care
for the children, notwithstanding that applications for
refugee status had not been filed on their behalf.

[7] At
the start of its admirably well structured, carefully
reasoned and comprehensive decision the Tribunal summarised
the basis for Mr Teitiota’s application and the issue it
needed to decide in this way:

[2] The
appellant claims an entitlement to be recognised as a
refugee on the basis of changes to his environment in
Kiribati caused by sea-level-rise associated with climate
change. The issue for determination is whether the appellant
is able to bring himself within the Refugee Convention or
New Zealand’s protected person jurisdiction on this basis.

[…]

Summary

[39] For
the reasons we have given, it is not appropriate to grant
leave to appeal to the High Court on any of the proposed six
questions of law.

[40] Although the Court has every
sympathy with the people of Kiribati, Mr Teitiota’s claim
for recognition as a refugee is fundamentally misconceived.
It attempts to stand the Convention on its head. Priestley J
succinctly explained why:

[55] The appellant raised an
argument that the international community itself was
tantamount to the “persecutor” for the purposes of the
Refugee Convention. This completely reverses the traditional
refugee paradigm. Traditionally a refugee is fleeing his own
government or a non-state actor from whom the government is
unwilling or unable to protect him. Thus the claimant is
seeking refuge within the very countries that are allegedly
“persecuting” him. …

[41] No-one should read this
judgment as downplaying the importance of climate change. It
is a major and growing concern for the international
community. The point this judgment makes is that climate
change and its effect on countries like Kiribati is not
appropriately addressed under the Refugee Convention.

Result

[42] The application for leave
to appeal to the High Court is dismissed.

[43] The
applicant is to pay the costs of the respondent as for a
standard application for leave to appeal under r 14 of the
Court of Appeal (Civil) Rules 2005 on a band A basis with
usual disbursements.

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